‘Tis the Season for the Thurmond Rule

Senate Republicans made headlines this morning for invoking the so-called “Thurmond Rule,” a practice in which the Senate opposition party within six months of a presidential election often refuses to allow votes on nominations to vacancies on the Courts of Appeals. In more basic terms, opposition party senators in the run up to a presidential election filibuster all appellate (and sometimes district) court nominees. Observers of judicial selection have noted (here and here) that there is no such formal “rule.” But that hasn’t stopped senators from either party from talking about the practice as a rule or often even as a doctrine. Because both parties have, over time, valued their ability to block the president’s judicial nominees, keeping alive the Thurmond Rule has proved convenient for both parties at different times.

Not surprisingly then, the debate in presidential election years tends to focus on whether the Thurmond Rule has been invoked “too early,” rather than on whether or not it should be invoked at all. Critics today, for example, noted that a Democratic majority confirmed a Bush nominee in 2008 in late June and that a Democratic minority allowed a vote on a Bush nominee in late June 2004. That would be in contrast to Republicans shutting down confirmation votes this year in mid-June. (For the record, the winner for the earliest invocation of the Thurmond Rule is actually the Senate GOP, which in 1996 confirmed its last Clinton nominee on January 2nd.)

I’m not sure there’s much to be gained by judging which Senate party has abused the rule more in recent years. More interesting to me are why Republicans chose today to shut down appellate confirmations and what broader implications the Thurmond Rule has for our understanding of the state of the Senate.

First, I suspect that Republicans were less interested in the date on which they invoked the rule and more interested in the consequences of invoking it. If we assume that no more Courts of Appeals nominees will be confirmed in 2012, yesterday’s confirmation of Ninth Circuit nominee Andrew Hurwitz brings Obama’s confirmation rate for the 112th Congress to 52 percent. By surpassing the 50 percent mark, Obama’s record is in line with recent presidents’ success rates (measured each Congress) over the past decade. Invoking the Thurmond Doctrine before allowing Hurwitz to be confirmed would have allowed Democrats to call out Republicans for confirming less than half of Obama’s nominees; allowing more nominees to be confirmed after Hurwitz would have put Obama’s win rate significantly above the win rate of recent presidents. Indeed, Senator Grassley (R-Iowa) suggested as much today, noting that “By this time, nobody can say it’s not fair to this president based on the number of nominations we’ve put up.” The date of June 14th is less important, Grassley suggests, than its implications.

Second, it’s important not to lose sight of the broader strategy that underlies reliance on the Thurmond Rule. If we compare confirmation rates over presidential election and non-presidential election years over the past sixty-some years, the difference is stark. Assuming no further appellate confirmations this year, on average 87 percent of nominations pending in non-presidential election years are confirmed; on average just 48 percent of nominations pending during a presidential election year are confirmed. That nearly forty point difference of course is time dependent. The difference in the two rates before 1980 is six percent; from 1980 to 2012, the difference is 43 percent. This isn’t surprising, but it is also emblematic of a broader opposition party strategy that has been in place for decades: Don’t let the other party confirm its nominees if there’s a chance (any chance, really) that your party’s nominee may win the keys to the White House. The prospects of controlling the White House—and with it the power to select nominees—has driven opposition parties to slow walk nominations in presidential election years for decades.

Finally, the persistence of the idea of a Thurmond rule or doctrine that compels and justifies opposition party tactics is a telling element of the modern Senate. As Steve Smith put it last night, the Thurmond Rule is “another example of senators turning obstructionism into a norm to justify dysfunctional behavior.” Senators from both parties perpetuate the chamber’s byzantine practices by engaging in these quadrennial debates about whether the other party has invoked the rule too early. They should instead focus on calling out the egregious behavior of blanket filibusters of the opposition’s candidates for the bench.